It is vital for working individuals to know about some of the common workplace injury threats that include falling objects, muscle strains, crashes, collisions and many more. However, the majority of workers do not realize that one of the most common workplace injuries is the one that very few individuals take precautionary measures to protect. Workers who work in close quarters with heavy machinery or on construction sites are frequently at an elevated risk of suffering from hearing loss. A workers' compensation hearing loss claim is predominantly demanding, especially when the insurer does not acknowledge that the incident was work-related. If you are denied your claim, you need a proper defense to help fight for your compensation. Here at The Workers Compensation Attorney Group in Long Beach, we have a team of dedicated attorneys who can represent you on the hearing loss compensation claim.
How Do I know I am Suffering from Hearing Loss?
From a worker’s perspective, there are three ways Hearing Loss can occur;
- The employee had prolonged exposure to loud noises,
- The employee had an injury to the head from a work-related accident or;
- The employee had sudden exposure to loud noise.
There are a couple of clear signs that reflect hearing loss; usually, it is a regular event and not easily recognizable. Some of the symptoms include;
- You have trouble understanding speech, especially in a noisy environment,
- Frequently requesting people to speak gently and clearly,
- There is ringing in your ears; Tinnitus,
- You have the perception that other people are mumbling and;
- You are exhausted after attending social events.
For most of these signs, the hearing loss injury will fall under two categories: Conductive and sensorineural hearing loss. The conductive hearing loss is a result of some parts of the ear not transmitting the sound waves to the eardrum. For the Sensorineural injury, it occurs when the central nerves and brain are damaged. Additionally, hearing loss can result from the combination of the two types.
It is recommended that you seek medical advice and assistance from a qualified professional in case you have any of the signs mentioned above.
Understanding the OSH Act for Noisy Environments
A report by the National Institute for Occupational Safety and Health (NIOSH) indicated that most California workers succumb to hearing loss. Moreover, about 20 million employees in the United States suffer from various forms of occupational hearing loss. In 1970, Congress passed a law known as the OSH Act which was a federal law that governed health and safety guidelines in the private and public industries of the United States. In California, the agency is referred to as the Division of Occupational Safety and Health of California. Its primary mission is to see that the national standards are maintained and sustained in all sectors of private and federal workplaces. The guidelines set by the agency require both the employees and their employers to be briefed. They include;
- The employer has to develop and apply a practical Hearing conservation program when the action levels surpass the required standards,
- The employees are expected to follow the hearing protection requirements,
- The employer has to provide hearing protectors when the sound levels surpass the permissible exposure levels (PEL) by OSHA. The PEL is limited to ninety (90) decibels, calculated as a time-weighted average (TWA).
- The employers’ hearing protectors must have the ability to reduce the noise to acceptable levels, if not the employer has to provide extra ear plugs and muffs.
- The employer has to evaluate the Noise Reduction Ratings (NRR) to all the hearing equipment
How Do They Determine the Hearing Loss was from a Working Environment?
Employees who work under high levels of noise without proper protection will eventually succumb to hearing loss. Every individual loses the ability to hear to some degree as they age. Natural hearing loss makes it complicated when determining the amount of hearing loss resulting from their employment. The problem for the employer is to pay for the work-related hearing loss, but not compensating the worker for age-related hearing loss. The details of the compensation claim are determined by reviewing the medical records of the employee.
The insurance company adjuster then searches for medical history to find an audiogram. A professional otolaryngologist tests an audiogram which reflects your ability or inability to hear different levels of sound. The result from the current audiogram will be compared to your previous completed to ascertain the increments in hearing loss. If the results show that hearing loss was caused by noise in the workplace, they will refer to it as perceptive hearing loss; then the claim will continue. If they find the result to be associated with conductive hearing loss, the application will be denied. Otherwise, if it is a mixture of the two, the claim will also continue.
What is the Appropriate Step to Take, Lawsuit or Claim the Compensation?
You should note that claiming compensation has its limits; if you receive compensation, you cannot sue your employer for the hearing loss and damages. If the employer violated the OSHA regulations and guidelines, you could request an OSHA inspection to the working area. According to the OSHA regulation, any sound noise that is above ninety (90) decibels can lead to temporary hearing loss. Take the example of the workers who work in construction or airports and are exposed to noises higher than one hundred (100) decibels. The employer is thus required to provide ear plugs that are at par with the OSHA standards. If the employer does not contain any equipment or they knew of the dangers of high levels of noise and did not give you notice, you can file for a lawsuit.
Veterans and active duty military personnel who experienced hearing loss due to wearing defective 3M combat earplugs, serving between 2003 and 2015 are also allowed to be involved in the lawsuit. The 3M product was flawed from the very beginning; its design was too short for proper use. Most of the 3M plug wiggled and allowed sound to penetrate the ear, resulting in many of the personnel to experience hearing loss and ringing in their ears. On the grounds of negligence, you can file for a lawsuit against your employer. Otherwise, if the hearing loss did not involve oversight by your employer, the best option is the compensation claim. If you are a railroad worker, it is much better to file under FELA, as explained below. Sometimes, hearing loss cases are quite complex and determining whether the case falls under a lawsuit or compensations, is usually another handle. It is, therefore, necessary to talk to your compensation attorney on such issues.
Federal Employers’ Liability Act (FELA)
The FELA act is a federal law passed by Congress in the early 20th century, as a result of high levels of injury cases reported by the railroad sector. For most of the matters handled by the FELA act, hearing loss compensation is on top of the list. If you are a railway road worker, the FELA act is highly favored when compared to the regular workers' compensation. One reason is that the claim is higher and more comprehensive compared to workers’ compensation. Under FELA, there are no limits to the settlement. The workers' compensation attorney may seek both future and current wages, and this also includes non-economic costs for the injured worker.
Additionally, the judges are given the instructions to award the compensation and damages based on commensurateness of the hearing loss. There is much difference between the regular California compensation law and FELA; one of the notables is that the railroad companies cannot defend themselves by hiring contractors or other third–party companies to provide workers. Note that the FELA act also covers the third-party workers and contractors.
Secondly, the railroad workers who get the compensation have to show that their employer was negligent and this negligence is what caused the hearing loss injury. The FELA act contains the comparative negligence standard that allows the railroad workers to get compensation, even if they were partially to blame for the hearing injury. The judge does this by assigning a percentage to the worker, followed by reducing this amount from the total reward. Those are some of the advantages of FELA when compared to California's compensation laws.
California’s Workers’ Compensation Laws
The employers are required to purchase workers’ compensation insurance in California. It covers work-related injuries irrespective of the fault; in this case, the insurance should cover the hearing loss. The cover also prohibits the employer from filing any lawsuit against the employer for most of the situations. Whether it is a hurt shoulder or Conductive hearing loss, if you have suffered or suffering from an employment hearing loss injury, it is necessary for you to know the benefits and requirements for filing a workers' compensation claim. The process is a three-step procedure for most of the workers:
- The employee has to report the hearing loss injury
- The employee has to file the claim
- The employee has to submit the adjudication of the application from the WCAB.
Important Deadlines for a Compensation Claim
Reporting the injury is found in the California labor code, section 5400. The employee is given 30days to write a notice to their employer. You or a person should sign the note on your behalf. Section 5401 of the Labor Code state that the employer should provide the compensation form to the worker not long after the day of getting the notice
Filing the DWC-1 Form
The form is handed to you by your employer after the first day of reporting the hearing loss injury. The document gives precise details on your rights as an employee, and the procedures to follow for you to receive the benefits. If there is a possibility of you not receiving the document, you can download it from the DWC website. The employer is also required to fill their details before posting the document.
Types of Benefits for Hearing Loss
The compensation covers all the medical care associated with the hearing loss injury. The benefits include hospital services, lab tests, and medicine among others. For those with temporary hearing loss, the law insurance company is required to pay the wages lost while you were in recovery. The amount calculation totals two-thirds of your pre-tax wages. The labor code, however, defines the period not to exceed one hundred and four (104) weeks after the reporting of the hearing loss. In case the hearing loss was permanent, the use of Labor code 4658 will calculate the compensation due. The labor code clarifies the amount and duration of the benefits to be determined by the extent of the hearing loss disability. For permanent hearing loss, there is a possibility you will not return to the previous employment; then the insurance company will pay for the refraining payments.
What Happens After I File My Claim?
The time factor is essential, especially to the employer or administrator. The time after filing the claim is critical to the employer because they have to authorize the appropriate medical treatment within the one (1) day of approval. The employee is entitled to receive medical treatment of up to ten thousand dollars ($10,000) even before the insurance company approves the claim. They are also required to pay for temporary disability benefits after fourteen (14) days of missing work. The insurance company is given ninety (90) days to deny the claim. If they do not meet this deadline, the hearing loss is presumed to be covered. If they fault from paying the compensation, an additional penalty of ten percent (10%) is rewarded to you.
The Insurance Company Denied The Claim
The insurance could deny the claim if they did not find sufficient evidence tying the hearing loss to the working conditions. For any employee, this can be alarming, and that is why the California law code allows you to have the right to be heard by a judge. First, you have to file for the Adjudication of Claim with the required documents. Moreover, you will need to inform other parties that are involved, and then submit for the Declaration of readiness for the courts to proceed with the case. You will be given a schedule for the case and a mandatory settlement conference if the situation is not settled in the courts. The preparation of the documents and the names of the witnesses who will testify is necessary. This type requires a workers’ compensation attorney present to help you with the detailing of the report as evidence and also represent you in front of the administrative law judge. You may disagree with the decision made by the judge during the trial; then you may move forward by filing a Petition for Reconsideration.
Frequently Asked Questions Regarding Hearing Loss Compensation
Is it possible to receive treatment from my personal doctor?
The state of California initially requires you to see a doctor appointed by your employer or the insurance company. If you are unhappy with the doctor recommended to you, you can request another doctor if the employer has established a medical provider network.
The insurance company says that another insurer is responsible, what does that mean?
When another insurer is to blame, it refers to a responsibility denial. Technically, the insurance company thinks there is another company responsible for handling the compensation claim. Often companies have different insurance companies filing different compensation, or there is a possibility you have worked for a different employer throughout your career. If this is the case, it is advisable to talk to your workers' compensation attorney to help you solve the situation and file the claim against the other responsible insurance company.
Can I get fired because I filed a workers’ compensation claim?
No, this is a form of discrimination. If you think you were laid off or harassed as a result of filing the workers' compensation claim, contact the Division of workers’ compensation in California.
My employer denied me a job because I have a hearing disability.
Denying work is an illegal practice and the Americans with Disabilities organization is strongly against discrimination and fights for qualified employees with disabilities. You can inform them on the illegal practices of your company. Additionally, Your employer needs to provide ‘reasonable accommodation' to aid a person with a disability where the injury was sustained performing work duties. The United States Equal Employment Opportunity Commission should be contacted also in situations of mistreatment.
Otherwise, there are work restrictions when you return to work, such as you cannot hear well in a construction site; thus, you cannot perform your job. Whether you lost the work for specific reasons or fired; the company downsized or laid off because you are not able to do the job as a result of the restriction. The workers' compensation will continue to pay most of your wages.
Are there any rehabilitation services available for hearing loss or deafness?
Yes, there are two different types of agencies for individuals with hearing loss;
- There is the Commission or the state offices whose purpose is to attend to individuals who are either deaf or hard of hearing and;
- The State Offices of Rehabilitation Services which contribute to individuals with disabilities including hearing loss.
There are rehabilitation services in the state of California; the most notable is the Department of Rehabilitation. You will have a meeting with the staff, and they help you find which services will cater to those needs. For most of the individuals, there is a possibility of being sent to a job placement or training agency. Though the department provides other services that include career and job counseling, the department will also help you fill out job applications, writing resumes and help you get ready for job interviews. Additionally, they will also answer the tough questions which explain gaps in the resume or why you are requesting an accommodation. You can contact the department by calling 1-916-324-1313 for voice or 1-844-729-2800 for text telephone (TTY).
Can I work a second job and still receive the workers' compensation?
For individuals in the state, they can choose to continue working a second job while they are receiving the workers' compensation benefits. That is, if the situation is less demanding towards hearing loss. Naturally, you may choose to continue working a second job while being unable to work on the primary job because it is not associated with hearing loss. For example, an airport worker who suffered hearing loss after an accident and still collecting workers' compensation benefits may have a secondary deskbound, office-based work. The airport worker is unable to perform their primary duties, as it requires hearing ability. However, they can do office work without irritating the hearing loss injury.
What if I am receiving income from the second job and I did not notify the necessary parties?
By receiving income from another employer makes your workers' compensation claim more complicated. It is advisable to discuss the issue with your workers' compensation attorney in a meeting. However, if you are receiving the workers' compensation benefits, the law requires you to report additional income. By not doing so, it could result in a workers’ compensation fraud charge, which includes five years in state prison, fines of one hundred and fifty thousand dollars ($150,000) and the insurance coverage affected by the fraud.
Who is entitled to the Longshore and Harbor Workers’ Compensation Act?
The LHWC act is a bill passed by Congress with its main aim being to cover employees disabled by work-related injuries that transpired on the navigable waters of the U.S. Other areas covered by the act include vessel yards that load, unload and repair ships. Note that the phrase ‘injury' is associated with hearing loss that rose from these environments. The bill covers all the employees in the traditional maritime occupations; including shipbuilders, harbor and construction workers. Note that this list is not limited to shipyard workers.
What if I am an independent contractor and I developed hearing loss at work?
California workers’ compensation requires you to be an employee to claim the benefit. Unless you are a railroad contractor, your employer has to pay for the benefit under the FELA act. If you are a government contractor working in foreign countries, under the Defense Base Act, you will receive compensation under the Longshore and Harbor Workers’ Compensation Act (LHWCA).
Find a Workers’ Compensation Attorney Specializing in Hearing Loss Near Me
Hearing loss is a complex issue, especially when determining the specific factors responsible. The labor laws are also complicated and hard to understand. Moreover, there are numerous compensation Acts, particularly to different workers. Having The Workers Compensation Attorney Group who specializes in hearing loss on your side can make the difference in the amount of Hearing Loss compensation. If you are in Long Beach, call us today at 714-716-5933 and talk to one of our Long Beach work injury attorney about your Hearing loss compensation claim.